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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Miller v Law Society Of Sotland Council [1999] ScotCS 296 (15 December 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/296.html Cite as: [1999] ScotCS 296, 2000 SCLR 849

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This is an action of declarator raised in order to resolve a dispute which has arisen between the pursuer, the Principal Reporter appointed under section 127 of the Local Government etc. (Scotland) Act 1994, and the defenders, the Council of the Law Society of Scotland, as to whether the pursuer and those other officers of the Scottish Children's Reporter Administration who happen to be solicitors are to be regarded as practising as solicitors while carrying out their work as reporters, and as therefore requiring to hold a practising certificate issued under the Solicitors (Scotland) Act 1980.

The pursuer's substantive conclusions (as amended) are in the following terms:

Part (b) of the second conclusion was added by amendment in the course of the hearing on the procedure roll when it became evident that the real issue so far as solicitors who are officers of the Scottish Children's Reporter Administration ("SCRA" or "the Administration") are concerned is not whether the pursuer may lawfully delegate his functions to such officers who do not hold a practising certificate, but rather whether such officers may lawfully exercise such delegated functions without holding a practising certificate.

It is convenient to note at the outset the terms of the principal legislative provisions which bear on the dispute between the parties. Two bodies of legislation require to be considered, namely that regulating the solicitors' profession and that regulating the position and functions of the Principal Reporter and SCRA.

The primary legislation regulating the solicitors' profession in Scotland is the Solicitors (Scotland) Act 1980 ("the 1980 Act"), which is a consolidating Act. Section 1 provides for the continued existence of the Law Society of Scotland ("the Society") and its exercise of the functions conferred on it by the 1980 Act. The objects of the Society include "the promotion of - (a) the interests of the solicitors' profession in Scotland and (b) the interests of the public in relation to that profession" (section 1(2)). Section 3 provides for the conduct of the business of the Society by the Council of the Society ("the Council"). Section 4 provides:

1. he has been admitted as a solicitor; and
2. his name is on the roll; and
3. subject to section 24, he has in force a certificate issued by the Council in accordance with the provisions of this Part authorising him to practise as a solicitor (referred to in this Act as a 'practising certificate')."

(It was not suggested that section 24 has any bearing on the issues raised in the present case.) Section 6 sets out the conditions and procedure for admission, section 7 provides for the keeping of the roll of solicitors, and section 8 provides for the entering on the roll of the names of persons admitted as solicitors. Section 14(1) provides:

Section 15 confers on the Council a discretion to grant or refuse an application for a practising certificate in certain defined circumstances (although nothing turns on that provision in the present case). Section 23 provides as follows:

Part IV is concerned with disciplinary proceedings, and section 51(2) makes it clear that all solicitors, not merely those entitled to practise, are subject to the jurisdiction of the Scottish Solicitors' Discipline Tribunal. Section 25 provides that:

Finally, section 65(1) defines "solicitor" as meaning "any person enrolled or deemed to have been enrolled as a solicitor in pursuance to this Act".

The effect of those provisions is to create two categories of persons, one of which is a sub-set of the other. The wider category, described as "solicitors", comprises all those who have been admitted and enrolled as solicitors (section 65(1)). All members of that wider category are subject to the disciplinary regime set up by the 1980 Act. The sub-set comprises those solicitors who are qualified, and therefore entitled in law, to practise as such. The members of the sub-set are those solicitors who hold a practising certificate (section 4). The balance of the members of the wider category, namely those solicitors who do not hold a practising certificate, while properly described as solicitors, are not entitled to practise as such. The distinction between the members of the sub-set and those members of the wider category who do not belong to the sub-set is enforced by the sanctions imposed by section 23. In other words, a solicitor who does not hold a practising certificate and is therefore not qualified to practise as a solicitor, but who nevertheless does so, commits both a criminal offence (section 23(1)) and professional misconduct which exposes him to the possibility of being found guilty by the Discipline Tribunal of a disciplinary offence and of being subjected to any of the sanctions prescribed by section 53(2) (section 23(2)).

When the system of children's hearings was first set up under the Social Work (Scotland) Act 1968 ("the 1968 Act") section 36 made provision for the appointment by each social work authority of an officer to be known as the reporter, and various functions in relation to that system were conferred on him. Further functions were conferred on the reporters by the Criminal Procedure (Scotland) Act 1975 ("CPSA 1975"). When local government was reorganised by the Local Government etc. (Scotland) Act 1994 ("the 1994 Act"), it was decided that the reporters should be replaced by a single reporter service to carry out those functions throughout Scotland. The relevant legislative provisions are to be found in Part III of the 1994 Act. Section 127(1) provides as follows:

Section 127(2) provides for the first appointment to the office of Principal Reporter to be made by the Secretary of State. The present pursuer is the first holder of the office of Principal Reporter.

Section 128 provides inter alia as follows:

Since the enactment of the 1994 Act, the relevant provisions of the 1968 Act have been replaced by corresponding provisions (albeit in amended form) of the Children (Scotland) Act 1995 ("CSA 1995") and the relevant provisions of the CPSA 1975 have been replaced by corresponding provisions of the Criminal Procedure (Scotland) Act 1995 ("CPSA 1995"). Sections 127 and 128 of the 1994 Act require to be construed accordingly.

Section 131 of the 1994 Act provides as follows:

It is unnecessary at this stage to examine in any detail the functions conferred on the Principal Reporter. The relevant provisions are to be found in Chapters 2 and 3 of Part II of the CSA 1995 and in sections 48 and 49 of the CPSA 1995. It is, however, convenient to note the terms of section 40 of the CSA 1995 which provides inter alia as follows:

I was informed that no qualifications had been prescribed under section 40(1). My attention was, however, drawn to the Reporters (Conduct of Proceedings before the Sheriff) (Scotland) Regulations 1997 (as amended) ("the 1997 Regulations"), regulations 3 and 4 of which, read together, provide that any reporter having the experience of having been a reporter for any period or periods amounting to not less than one year shall be entitled, whether or not he is an advocate or a solicitor, to conduct before a sheriff any proceedings which, under Chapters 2 and 3 of Part II of the CSA 1995 are heard by the Sheriff.

The pursuer avers that he is a solicitor, and that he does not hold a practising certificate. He avers that SCRA employs a number of other officers to assist him in carrying out his statutory functions, including individuals employed as reporters in various grades. Those officers hold qualifications in a variety of professional disciplines, including the law. In addition to the pursuer, twenty three such officers are solicitors who do not currently hold practising certificates. The pursuer has exercised his power to delegate to various reporters authority to exercise his statutory functions. The officers to whom those functions have been delegated include some who are solicitors and others who have no legal qualification. The substance of those averments is admitted by the defenders.

For convenience, I propose in this opinion to refer to persons (i) who are officers appointed by the SCRA under section 128(5) of the 1994 Act, and (ii) to whom the Principal Reporter has delegated functions under section 131(1) of the 1994 Act, and (iii) who have been admitted as solicitors and remain on the roll of solicitors under the provisions of the 1980 Act, as "solicitor/reporters".

In Answer 6 the defenders, in support of their contention that the pursuer and the other solicitor/reporters are practising as solicitors and are therefore each obliged to procure a practising certificate, make the following averments:

In response to those averments the pursuer, in Article 6 of the condescendence, makes a number of admissions. With minor verbal variations the averments which I have highlighted by underlining in the passage quoted above are admitted. Other averments are admitted in modified form. Thus in relation to proceedings before Children's Hearings the admission (if it is right to call it an admission when it does not correspond in terms with the averment) is that:

In relation to proceedings before the Sheriff Principal, the pursuer admits that some reporters conduct such appeals, but explains that there is currently a dispute as to which reporters have the right to do so. In relation to reliance on training, the pursuer admits:

In Answer 7, the defenders aver that until 1998 the practising certificates of solicitor/reporters were paid for by their employing authority, the regional councils and subsequently SCRA; that from 1988 the Reporter for Strathclyde Region engaged law graduates under post-diploma training contracts (something which only a solicitor in practice could do - Admission as Solicitor (Scotland) Regulations 1986, regulation 14, c.f. Admission as Solicitor (Scotland) Regulations 1991, regulation 13), and that the Administration accepted assignation of a number of such contracts in 1996 and duly discharged them; and that a number of solicitor/reporters have met the cost of their own practising certificates following the refusal of the Administration to do so. In response to those averments the pursuer admits, in Article 7 of the condescendence, that some regional councils formerly paid the cost of solicitor/reporters' practising certificates, but explains that practice was not uniform; admits that the Administration accepted assignation of a number of post-diploma training contracts, and subsequently discharged them; and believes it to be true that a number of solicitor/reporters have met the cost of their own practising certificates.

The defenders' primary submission was that it was clear from the averments admitted by the pursuer that he and other solicitor/reporters are carrying on practice as solicitors, and therefore require to have practising certificates. The concept of "practising as a solicitor" is not defined in the 1980 Act. From that it could be inferred that Parliament recognised that it was not readily susceptible to definition, but was recognisable when encountered. The work of solicitors is extremely varied (Stair Memorial Encyclopaedia of the Laws of Scotland, Vol. 13, § 1153; Report of the Royal Commission on Legal Services in Scotland, Cmnd 7846, §§ 3.3 et seq). The pursuer, and those solicitor/reporters who carry out functions delegated to them by the pursuer, have gone through the regime of education and practical training required of solicitors. The work done by them is informed and permeated by their legal education and training, the required components of which are specified in the Admission as Solicitor (Scotland) Regulations 1986 and 1991. They have been admitted and enrolled as solicitors. They have thus brought themselves within the scope of the statutory regulation of the solicitors' profession. They have chosen not to have their names removed from the roll. The work which the pursuer admits in Answer 6 is undertaken by solicitor/reporters in the course of their duties as reporters involves the provision by them of legal services. It is work of the same nature as is undertaken by solicitors in the course of practising as such. That is sufficient to demonstrate that in carrying out their duties solicitor/reporters are practising as solicitors. The mere fact that other reporters who are not solicitors are not practising as solicitors, despite undertaking the same work, does not detract from the validity of the proposition that solicitor/reporters do practise as solicitors. To establish that solicitor/reporters are practising as solicitors it is sufficient to show that they are doing work which falls within the categories of work which solicitors in practice undertake, and the pursuer's admissions are sufficient to show that.

Junior counsel for the defenders, Mr Clark, having set out the broad submission which I have just recorded, then proceeded to make a series of more specific points in support of the defenders' contention.

1. The pursuer's admission in Answer 7 that SCRA had accepted assignations of post-diploma training contracts originally entered into by the Reporter for Strathclyde Region demonstrated that at that time it had been accepted that the pursuer was "in practice as a solicitor", since otherwise he could not, without the special written consent of the defenders, have acted as the "employing solicitor" in relation to trainees (Admission as Solicitor (Scotland) Regulations 1986, regulation 14(1), and Admission as Solicitor (Scotland) Regulations 1991, regulation 13(1)). Since whether or not a solicitor/reporter was practising as a solicitor was a question of fact, the court was entitled to take account of, and accord significant weight to, the past views of relevant persons such as the pursuer and his predecessor, the Reporter for Strathclyde Region. Mrs Smith, senior counsel for the defenders, reiterated that point, suggesting that its significance was that the pursuer, a responsible public official, must be taken to have considered the matter carefully and to have been satisfied that he was practising as a solicitor.
2. The pursuer's admission that some solicitor/reporters conducted appeals before the sheriff principal also pointed to recognition that they were practising as solicitors. Section 51(11) of the CSA 1995 introduced the possibility (which had not existed under the 1968 Act) of appeal from the sheriff to the sheriff principal. Although the 1997 Regulations authorised reporters who were not legally qualified to appear before the sheriff if they had a year's experience, on a proper construction of those Regulations and the statutory provision under which they were made (section 40(4)(a) of the CSA 1995), they did not confer on reporters a right of audience in appeals to the sheriff principal under section 51(11). That point, first noticed by Sheriff Principal Risk in Templeton v M. E. 1998 SCLR 672 at 679B-D, was the subject of a fully reasoned obiter note issued by him in Nassaris v The Children's Hearing Reporter (Sheriffdom of Grampian, Highland and Island at Fort William, 5 November 1998, unreported). In brief summary, Sheriff Principal Risk's reason for holding that the regulations did not confer on reporters a right of audience in appeals before the sheriff principal was that, despite the fact that in terms of section 5 of and Schedule 1 to the Interpretation Act 1978 "sheriff" includes "sheriff principal", it was clear that in various provisions in Chapters 2 and 3 of Part II of the CSA Act 1995 "sheriff" was used in a sense that could not include "sheriff principal", and that accordingly in section 40(4) and the 1997 Regulations "sheriff" was likewise used in the narrow exclusive sense. It followed, Mr Clark argued, that solicitor/reporters who appeared before the sheriff principal must be doing so by virtue of their right of audience as solicitors, which served to confirm that in so appearing they were practising as solicitors.
3. Mr Clark next relied on the terms of section 43(7) of the 1980 Act. Section 43 is concerned with the Scottish Solicitors Guarantee Fund ("the Guarantee Fund"). Section 43(7) gives effect to Part 1 of Schedule 3 to the Act, which provides inter alia for the making of contributions to the fund by "every solicitor in respect of each year during which, or part of which, he is in practice as a solicitor" (paragraph 1(1)). The section then goes on to provide that nothing in the Schedule shall apply to or in the case of a solicitor (a) who is not in practice, (b) who is suspended from practice or (c) who is in such employment as is specified in section 35(4). No contribution is therefore required from those exempted categories of solicitors. Section 35(4)(c) (which is primarily concerned with the applicability of the accounts rules) specifies "employment in an office connected with the administration of a local authority or a statutory undertaking or a designated body to which he has been appointed by the authority or the statutory undertakers or the persons responsible for the management of that body by reason of his being a solicitor". Mr Clark accepted that employment by the Administration did not fall within the scope of that provision, although under the 1968 Act reporters had been employed by local authorities and therefore in that respect fell within its scope, and suggested that it was an oversight that following the 1994 Act employees of SCRA had not been brought within the exemption. Mr Clark argued however that solicitor/reporters could be said to have been appointed "by reason of being solicitors", in the sense that their qualification as solicitors was a relevant qualification for appointment as reporters. They were therefore in that respect covered by the exemption. As I understood the argument, the point which the defenders sought to make was that the existence of the exemptions showed that otherwise solicitors working for local authorities and analogous bodies would be regarded as practising as solicitors.
4. The pursuer's admission that in the past SCRA, and the local authorities before them, had paid for practising certificates for solicitor/reporters further supported the conclusion that solicitor/reporters were in practice as solicitors. Given that any such payments were made out of public funds, it was to be presumed that the expenditure had been regarded as necessary.
5. The public interest, Mr Clark submitted, required that solicitor/reporters should be subject to the same Code of Conduct as other solicitors. He suggested that if they were not regarded as practising as solicitors they would not be subject to the Code of Conduct, and that would be anomalous. The argument proceeded on the basis that the Code of Conduct is applicable only to solicitors who hold a practising certificate, and that proposition was derived from the terms of the Code of Conduct (Scotland) Rules 1992, to which the Code of Conduct forms Schedule 1, and which by rule 2(1) applies to solicitors holding a full practising certificate. In elaborating on this point Mrs Smith explained that the defenders, bearing in mind that their objects include promotion of the interests of the public in relation to the solicitors' profession, were concerned that it would not be in the public interest if solicitor/reporters were not subject to the Code of Conduct. An unsatisfactory dichotomy would exist. So far as the defenders were aware, there was no code of conduct specifically for reporters. Although the Administration had disciplinary power over its officers, no disciplinary code was before the court. The exercise of the disciplinary powers vested in the Scottish Solicitors Discipline Tribunal would be hampered if solicitor/reporters were not held to be in practice and thus subject to the Code of Conduct.
6. The pursuer, it was submitted, did not aver with adequate specification what he and his staff actually do on a day-to-day basis. Reference is made to his statutory functions, and to the scheme under which he delegates functions to other officers of the Administration, but, having admitted some of the defenders' averments about what reporters do, he did not attempt to aver in what respects the things that reporters do are different from the things that solicitors in practice as such do.

In making his submission that solicitor/reporters were in practice as solicitors, Mr Clark concentrated, as I understood him, on the considerations that such reporters had the benefit of the education and training demanded of solicitors and drew on such education and training in the course of their work as reporters, retained their status as enrolled solicitors, and did work which constituted the provision of legal services (including the conduct of court proceedings, the giving of legal advice, the drafting of legal or formal documents, and the assessment of evidence) and was thus of the same nature as the work done by solicitors in practice. Towards the end of his submissions I asked him whether solicitor/reporters could be regarded as having clients; if so, who their clients were; and if they did not have clients, whether that had a significant bearing on whether they should be regarded as being in practice as solicitors. Mr Clark's response was that solicitor/reporters should be regarded as having clients to whom they provided legal services. He identified the client as SCRA. The solicitor/reporters' position was analogous to that of solicitors employed by local authorities or government departments. Mrs Smith elaborated upon that proposition. A solicitor could, she said, be in practice as such even if he had no fee-paying clients. She gave various examples of solicitors employed in the public sector whose client was the public body by whom they were employed, e.g. the town clerk of a burgh in the period before 1975 (Stair Memorial Encyclopaedia, Vol. 13, § 1438), the clerk to a licensing board (Licensing (Scotland) Act 1976, section 7(1)), and the solicitor to the Inland Revenue in Scotland. In the case of reporters, the client was SCRA. Reporters were officers of SCRA, a body corporate with continuous existence even during any interregnum when no Principal Reporter was in office. Notwithstanding the fact that the pursuer was carrying out statutory functions imposed directly on him, and other reporters were carrying out those functions under delegation from the pursuer, the legal services which were performed in carrying out those functions were performed for SCRA, which therefore stood in the position of client. The fact that by virtue of section 128(8) of the 1994 Act SCRA could not direct or guide the pursuer in the performance of his functions did not preclude the conclusion that SCRA was the pursuer's client. Mrs Smith went on to submit that the Children's Hearings might also be regarded as clients, since at the hearings the reporter provided a legal service. More faintly, Mrs Smith also submitted that failing any other client, the children of Scotland might be regarded as the clients of the reporters. She returned, however, to the defenders' primary contention, which was that the question whether solicitor/reporters practise as solicitors was a question of fact to be determined by examination of the nature of the work they actually do. There was no magic in the fact that the work was carried out within a statutory framework. The fact that reporters who are not solicitors do largely the same work as those who are was no obstacle to the defenders' contention. A solicitor in private practice and a para-legal employed in his office might to a greater or lesser extent do much the same work, but the solicitor would thereby be practising as a solicitor, while the para-legal would not. It was thus the conjunction of the fact that the reporters in question were solicitors with the fact that they did the work of solicitors by providing legal services that led inevitably to the conclusion that they were practising as solicitors.

On the basis of these submissions the defenders' motion was primarily that I should sustain their first plea-in-law and dismiss the action. Failing that, I should allow a proof before answer on the whole averments on record.

Counsel for the pursuer, Lord Mackay of Drumadoon, submitted that the crucial issue in the case was what was meant by the phrase "practising as a solicitor". The 1980 Act distinguished between solicitors in general, and those solicitors who are entitled in law to practice as solicitors. Section 4 of the 1980 Act stipulated that a person admitted and enrolled as a solicitor required, in order to be qualified to practice as a solicitor, to have in force a practising certificate; and it was the activity of practising as a solicitor without having in force a practising certificate that was made subject to both criminal and disciplinary sanctions by section 23.

Before addressing the crucial issue, Lord Mackay made some reference to the statutory position of the pursuer and the other officers of the Administration. The Principal Reporter's post is a creature of statute, and the functions conferred on him are all statutory. Section 127 of the 1994 Act laid down no requirement that the Principal Reporter should hold any particular qualification. There was no requirement in the 1994 Act that he be a lawyer, or that, if he happened to be a solicitor, he should hold a practising certificate in order to be qualified to discharge his statutory functions. Section 128(2) placed the Principal Reporter in the additional role of chief officer of the Administration. It was clear, however, that the function of the Administration was to facilitate the performance by the Principal Reporter of his statutory functions, and that the latter functions were not in any sense functions of the Administration. The Administration's role in relation to the other officers was managerial and administrative. Section 128(8) made it clear that the Administration could not direct or guide the Principal Reporter in the performance of his functions; and it followed that the Administration had likewise no power to guide or direct other officers in the performance of statutory functions delegated to them by the Principal Reporter. Officers to whom the performance of such functions was delegated by the Principal Reporter stood in the shoes of the Principal Reporter, and were not mere agents for him. There was nothing to prevent the Administration from employing a solicitor to act as their in-house legal advisor, and such a solicitor might well be practising as a solicitor and so require a practising certificate; but if the Administration did that, such a solicitor would be in a different position from a solicitor/reporter performing the statutory functions of the Principal Reporter under delegated powers.

Lord Mackay identified a number of factors that, he submitted, might be of assistance in determining whether solicitor/reporters were practising as solicitors. He referred first to Piper Double Glazing Ltd v DC Contracts (1992) Ltd [1994] 1 All ER 177. In that case it was held that the prohibition in section 25(1) of the Solicitors Act 1974 against the recovery of costs in respect of anything done by an unqualified person "acting as a solicitor" does not apply to an unqualified person representing a party in an arbitration since an unqualified person does not "act as a solicitor" within the meaning of section 25 merely by doing acts of a kind commonly done by solicitors. Having referred to other sections preceding section 25 of the 1974 Act, Potter J said (at 186g-h):

Next, Lord Mackay submitted that in seeking to determine whether a person was practising as a solicitor it was useful to see if he was acting for a client. The relationship of solicitor and client was a relationship of agent and principal. What a solicitor did in practice was done for clients (see Stair Memorial Encyclopaedia, Vol. 13, § 1153, where in a description of the varied work of solicitors, repeated use was made of the phrase "on behalf of their clients" or words to that effect). While it was therefore right to regard a solicitor as providing legal services to his client, it was also a feature of the relationship that the client issued instructions to the solicitor. Section 128(8) stood in the way of SCRA giving instructions to reporters. The defenders' submission that SCRA was the client for whom the pursuer and other solicitor/reporters acted was therefore misconceived. What reporters did was not the provision of legal services to SCRA, but the performance of the Principal Reporter's statutory functions. Equally, in so far as a solicitor/reporter might, by the advice he gave or the views he expressed, guide the conduct of the Children's Hearing or other bodies such as the police, social workers or the procurator fiscal, he was not acting as solicitor to those bodies, but simply performing the statutory functions of the Principal Reporter. In the fourth speech of the debate, Lord Mackay added to this aspect of his submissions by citing Way v Bishop [1928] 1 Ch 647, a case concerned with a restrictive covenant in a contract of partnership which bound a retired partner "not to practice" as a solicitor for a period after retirement within a certain area, and whether taking up employment as a solicitor's managing clerk constituted breach of the covenant. Russell LJ said (at 660):

In relation to the averments in Answer 6, on which the defenders relied in support of their proposition that what solicitor/reporters did constituted practising as solicitors, Lord Mackay made the following points.

1. It was not disputed that reporters who had qualified as solicitors would, in the course of their duties as reporters, make use of the education, training, and experience which they had acquired in the course of so qualifying. The fact that they did so cast no light, however, on whether in performing their duties as reporters they were practising as solicitors.
2. The averment that reporters offer legal advice to social workers, police, the procurator fiscal and the members of the Children's Hearing did not reflect a sound analysis of what reporters do. In the course of discharging the statutory functions of the Principal Reporter delegated to them reporters might offer views on the law or suggest courses of action, but in so far as they did so, they did so in discharge of those functions and not by way of providing legal advice to clients.
3. The assessment of evidence with a view to deciding whether children should be referred to the Children's Hearing was expressly a part of the Principal Reporter's statutory functions (CSA 1995, section 56).
4. The drafting of grounds of referral was also an express statutory function of the Principal Reporter (CSA 1995, section 65(1)).
5. It was inaccurate to say that the reporter "conducts" Children's Hearings. The conduct of hearings was in the hands of the chairman, who was vested with a discretion to determine its procedure (Children's Hearings (Scotland) Rules 1996, Rule 10(3)). It was acknowledged that at hearings the reporter might offer views on legal issues which arose, but that was done in discharge of the statutory function, not as advice to a client.
6. The conduct of proceedings before the sheriff was likewise part of the statutory functions of the Principal Reporter (e.g. CSA 1995, section 65(7) and (9)). By virtue of the 1997 Regulations, any reporter was entitled to conduct such proceedings, whether or not he was otherwise entitled to appear in the Sheriff Court by reason of being a solicitor or advocate.
7. It was unnecessary in this case to determine whether Sheriff Principal Risk was correct or not in his view that the 1997 Regulations did not confer on reporters a right of audience before the sheriff principal. If the view expressed in Nassaris was correct, appearance by a reporter before the sheriff principal was not part of the reporter's statutory function. It could not be inferred, from the fact that solicitor/reporters had appeared before the sheriff principal before Sheriff Principal Risk expressed his view, that in doing so they were relying on their right of audience as solicitors. They could equally have been relying on the view that the Regulations did confer a right of audience before the sheriff principal, a view expressed in the explanatory note attached to the Regulations. Since Sheriff Principal Risk's decision, the practice of reporters appearing before the sheriff principal had ceased, and instead a solicitor or counsel was instructed to represent the reporter. If, on the other hand, the view expressed in Nassaris was incorrect, appearance before the sheriff principal, like appearance before the sheriff, could be justified by reference to the Regulations.

In relation to the averments in Answer 7, Lord Mackay's submission was that past events were irrelevant to determination of the issue now before the court. Neither the fact that the pursuer had accepted assignation of post-diploma training contracts entered into by the Reporter for Strathclyde Region, nor the fact that in the past employing authorities had paid for practising certificates for solicitor/reporters, cast any light on the question whether solicitor/reporters were, in carrying out their duties as reporters, also practising as solicitors.

The defenders could, Lord Mackay submitted, derive no assistance from the argument based on the Guarantee Fund provisions in the 1980 Act. The primary obligation to contribute to the Guarantee Fund is imposed on solicitors in practice (Schedule 3, Part I, paragraph 1(1)). That is reinforced (perhaps unnecessarily) by section 43(7)(a). The cross-reference in section 43(7)(c) to employed solicitors specified in section 35(4) is therefore a provision to which resort need only be had if it is already clear that the solicitor in question is in practice as such. In any event, a solicitor/reporter does not fall within the scope of section 35(4)(c) for a number of reasons, namely (i) because he is not employed by a local authority, statutory undertaking or designated body, (ii) because he is not employed "in connection with the administration of" SCRA, and (iii) because he is not employed by SCRA "by reason of his being a solicitor".

The defenders' apprehension that there would be inadequate protection of the public interest if solicitor/reporters were not treated as being in practice as solicitors was, Lord Mackay submitted, unjustified. Solicitors were subject to the jurisdiction of the Discipline Tribunal whether they held a practising certificate or not, and the sanctions provided for in section 53(2), including suspension from practice, were equally available against a solicitor who did not hold a practising certificate. If would be surprising if the defenders and the Discipline Tribunal felt unable to deal equally effectively with two solicitors guilty of the same professional misconduct simply because one held a practising certificate and the other did not. Moreover, reporters were subject to the disciplinary control of SCRA, and it was fanciful to suppose that the Administration would not take appropriate disciplinary steps against a reporter guilty of misconduct in the discharge of his duties.

For these reasons, Lord Mackay submitted that it could be determined on the pleadings that the pursuer and other solicitor/reporters are not practising as solicitors when performing the pursuer's statutory function; that they therefore do not require to hold practising certificates; and accordingly that the pursuer's second plea-in-law should be sustained and the defences repelled, and thereafter the pursuer' first and second pleas-in-law sustained and decree of declarator pronounced de plano.

Discussion

In my opinion the crux of the dispute was rightly identified in the course of the debate as being whether or not solicitor/reporters are, in carrying out their duties as reporters, also practising as solicitors. The conditions for entitlement to practise as a solicitor are set out in section 4 of the 1980 Act as being (i) admission, (ii) enrolment and (iii) having in force a practising certificate. A solicitor who satisfies the first and second of these conditions but not the third, and who practises as a solicitor, commits a criminal offence as well as professional misconduct (section 23). It follows, in my opinion, that if what is done by a solicitor/reporter, in the course of his duties as a reporter, amounts to "practising as a solicitor", the pursuer's action must fail. On the other hand, if what is done by a solicitor/reporter, in the course of his duties as a reporter, does not amount to "practising as a solicitor", the pursuer is entitled to the declarators which he seeks.

The concept of "practising as a solicitor" is not defined or explained in the 1980 Act. The parties approached the question from different directions. The defenders concentrated on the close analogy that could be drawn between what a reporter does in the course of his duties and what a solicitor does in practising as such. The pursuer, on the other hand, concentrated on the fact that all that a reporter does is done in performance of the statutory functions of the Principal Reporter, and can be done by any reporter to whom the appropriate delegated authority has been given by the pursuer, whether he has been admitted and enrolled as a solicitor or has his professional background in some other discipline. It seems to me that the answer to the question focused in the case depends largely on which of those approaches is the correct one.

Two cases were cited to me as having a possible bearing on the construction of the phrase "practising as a solicitor". In the event, I derive only limited assistance from them. In Piper Double Glazing Ltd v DC Contracts (1992) Ltd, it was held that an unqualified person representing a party in an arbitration was not thereby "acting as a solicitor" within the meaning of section 25(1) of the Solicitors Act 1974. In my view that is clearly correct. But that case was concerned with whether a person who was not a solicitor was acting as a solicitor. This case is concerned with whether persons who are solicitors are practising as solicitors. Those seem to me to be quite different questions. I do not consider that it is sound to regard Potter J's view that doing acts of a kind commonly done by, but not exclusively reserved to, solicitors did not amount to "acting as a solicitor", as affording support for the pursuer's position that the fact that solicitor/reporters do things which solicitors in practice as such do does not show that they are practising as solicitors. The position may be sound, but it does not in my view derive support from Piper Double Glazing. Way v Bishop was concerned with the meaning of "practising as a solicitor" in a restrictive covenant, and therefore does not seem to me necessarily to be a sure guide to the meaning of the same phrase in a statute. I have no difficulty in accepting, in the statutory as well as the contractual context, the force of the view expressed by Russell LJ at 660 that practising as a solicitor ordinarily involves the solicitor entering into the relationship of solicitor and client, and I shall return to the significance of that aspect of the matter in due course. I do not consider, however, that in the statutory context with which I am dealing there is room for the view that one who acts as the employee of another does not practise as a solicitor. A solicitor who works as an employee of a firm of solicitors in private practice is as much "practising as a solicitor" in the sense contemplated by the 1980 Act as are the principals of the firm.

It is clear that a solicitor/reporter will have undergone the education and training required in order to qualify as a solicitor. It is clear that in undergoing such training the solicitor/reporter will have learned much that will be of use to him when he carries out his duties as a reporter. The ability to undertake legal analysis, to obtain and evaluate evidence, to draft clearly and persuasively, to formulate and tender advice, to undertake oral advocacy, for instance, will no doubt be valuable to a reporter in the performance of his functions as such. I accept, as the pursuer does, that a solicitor/reporter will, when acting as a reporter, make use of such skills acquired in the course of his training as a solicitor. Indeed, as the pursuer avers, "it would be neither possible nor sensible for [him] to refrain from doing so". It seems to me, however, that a person who, having qualified as a solicitor, had his name removed from the roll of solicitors before accepting an appointment as a reporter, would be likely to rely in the same way and to the same degree on his legal training as a solicitor/reporter would do. Yet such a person could not be said to be practising as a solicitor when carrying out his duties as a reporter. It therefore seems to me to be difficult to place much, if any, weight on the fact that a solicitor/reporter will deploy the skills acquired in the course of his training as a solicitor when acting as a reporter, when seeking to determine whether he is in so acting practising as a solicitor. It must be borne in mind, too, that admission and enrolment as a solicitor is not a necessary qualification for appointment as a reporter. Reporters can be, and are, appointed from other professional backgrounds. Such reporters no doubt require to possess or develop all or some of the same skills. They may, no doubt, bring from their previous profession additional skills. It seems to me, however, that once appointed as reporters, all reporters are doing the same thing, namely performing the statutory functions delegated to them by the Principal Reporter, irrespective of the source of the skills which they deploy in doing so.

It is no doubt true, as the pursuer accepted, that much of what a reporter does in performing his functions is closely analogous to aspects of the work of a solicitor in practice. He ingathers and assesses evidence to determine whether proceedings should be brought; he drafts the grounds of referral in light of his assessment of the evidence; he attends and takes a substantial part in Children's Hearings (although he does not, as the defenders aver, "conduct" the hearing - that is in the hands of the chairman); he expresses in the course of his duties opinions on matters of law or mixed fact and law, and others may adjust the way in which they proceed in light of the opinions so expressed; he conducts proofs before the sheriff. All of these activities are of the same nature as activities which are undertaken by solicitors in the course of practising as such. I do not, however, consider that it follows that a solicitor/reporter in doing these things is practising as a solicitor. All of these things may be done by any reporter, whether a solicitor or not. To a substantial extent that follows simply from the inclusion of the activities in the functions of the Principal Reporter which are delegated by him to other reporters. In the specific case of appearance before the sheriff, the activity is open to all reporters, legally qualified or not, by virtue of the 1997 Regulations. The reporter who is not a solicitor cannot be said to be practising as a solicitor because he does in the course of performing his functions work similar to aspects of the work of a solicitor. It was not suggested by the defenders that by doing work like a solicitor's work a reporter who was not a solicitor was holding himself out as a solicitor. It does not seem to me to be necessary or appropriate to treat the solicitor/reporter differently, by regarding him as practising as a solicitor by virtue of doing his work as a reporter.

In my view the question whether a solicitor/reporter is in practice as a solicitor can usefully be tested by seeking to identify whether he has a client. Practice as a solicitor seems to me to involve the solicitor in entering into the relationship of solicitor and client, the solicitor performing legal services for the client, and doing so in accordance with the instructions of the client. There may be individual situations which fit that generalisation more poorly than others, but I doubt whether there is much scope for saying that a solicitor is practising when his activities are not undertaken for a client or clients. Mrs Smith pointed out, and I accept, that the charging of fees is not an essential feature of the solicitor/client relationship. For example, an in-house solicitor may be employed by his only client, and may be remunerated by a salary rather than by fees. That type of example does not, however, support the view that a solicitor can be said to be practising without any clients at all. Mrs Smith's further examples of solicitors employed in the public sector go to show that a solicitor may well be in practice although he has only one client, and that client is his employer, but I did not understand the defenders to argue that a solicitor could be said to be practising as such if there was no one who could be identified as his client. In my opinion, the various suggestions made on the defenders' behalf as to who might be regarded as the client of solicitor/reporters do not stand up to examination. The primary suggestion, that the client is SCRA, does not, in my opinion, fit with the statutory structure set up by the 1994 Act. The Principal Reporter has certain statutory functions conferred on him. Other reporters perform those functions as delegates of the Principal Reporter. The role of SCRA is administrative and supportive. It is expressly provided that SCRA has no power to direct or guide the Principal Reporter in the performance of his statutory functions; and it is the Principal Reporter, rather than SCRA, who is given the power to instruct or guide other reporters. In these circumstances it is, in my view, a distortion of the statutory arrangements to treat reporters as doing what they do for the benefit of SCRA, in the way that a solicitor does what he does for the benefit of his client. Moreover, section 128(8) in my view goes a long way towards disabling SCRA from fulfilling an important aspect of the role of the client, namely the giving of instructions. In my opinion the nature of the relationship between reporters and SCRA is to be found in the 1994 Act, and not in a strained analogy with the relationship of solicitor and client. The suggestions that other parties, such as social workers, police, the procurator fiscal or the Children's Hearing, might fulfil the role of the reporter's client are in my view equally ill-founded. Mrs Smith's suggestion that the children of Scotland might be regarded as the reporters' clients has, in my view, no merit other than as a piece of rhetoric. In my view the sound view of the situation is that reporters have no one who ought properly to be regarded as their client, and that consideration is in my view a substantial obstacle in the way of the proposition that solicitor/reporters are in practice as solicitors.

I agree with counsel for both parties that it is unnecessary for me to address in this case the question addressed by Sheriff Principal Risk in Nassaris. If Sheriff Principal Risk was wrong in holding that the 1997 Regulations do not confer on reporters a right of audience before the sheriff principal, appearances by reporters before sheriffs principal were authorised by the Regulations in the same way as appearances before the sheriff are. In that event, such appearances add nothing to the defenders' argument. If, on the other hand, Sheriff Principal Risk was right, all that may be inferred from the fact that reporters have appeared before sheriffs principal is that they have done so erroneously. Such error is scarcely surprising, considering the terms of the explanatory note attached to the Regulations, which expressly stated the view which Sheriff Risk held to be wrong. What cannot, in my view, be inferred from such appearances is that where the reporters concerned were solicitor/reporters they were relying on their right of audience as solicitors, and thus practising as solicitors. Moreover, even if such an inference were legitimate, it would not in my view cast any light on the broader question of whether solicitor/reporters in carrying out other aspects of their duties as reporters are practising as solicitors.

In my opinion the argument founded on the provisions relating to the Guarantee Fund is of no assistance to the defenders. Section 43(7) provides various grounds for exemption from the requirement to contribute to the Guarantee Fund. That is a requirement which is placed on solicitors in practice, and section 43(7)(a) expressly exempts solicitors who are not in practice as such. The further exemption expressed by cross-reference to section 35(4) (which applies primarily to the requirement to comply with the accounts rules) accordingly applies to certain employed solicitors who are ex hypothesi in practice as solicitors but are to be exempted from the requirement of contribution to the Guarantee Fund. Since that is the structure of the provisions, it seems to me that the answer to the question whether solicitor/reporters would fall within the scope of section 35(4)(c) casts no light on the question before me, namely whether they are in practice. Even if it could be said that solicitor reporters fell within the scope of section 35(4)(c), it could not, in my view, be argued on that account that they were to be regarded as practising as solicitors. In any event, solicitor/reporters do not fall within the scope of section 35(4)(c), because SCRA is not a local authority, a statutory undertaker or a designated body. In addition, although it is not in the circumstances necessary to go into this point in any detail, it cannot in my view be said that a solicitor/reporter has been appointed as a reporter "by reason of his being a solicitor". In my opinion, whether solicitor/reporters require to contribute to the Guarantee Fund depends on whether they are in practice as solicitors. If they were in practice as solicitors, section 35(4)(c) would not serve to exempt them. But none of that analysis casts light on whether they are to be regarded as being in practice as solicitors.

I do not consider that there is any force in the defenders' argument that if solicitor/reporters were not regarded as being in practice as solicitors, there would be inadequate protection of the public in the event of their being guilty of misconduct. I regard the appropriate starting point for consideration of this argument to be section 128(7) of the 1984 Act, which confers on SCRA the role of disciplinary authority over all reporters. In my view Parliament may be taken to have regarded that as adequate provision for securing that reporters in the course of their duties adhered to appropriate standards of conduct. The defenders, however, start by asking whether solicitor/reporters should not be subject to the same code of conduct and disciplinary regime as other solicitors. In part, the answer to that question is provided by Part IV of the 1980 Act, which subjects all solicitors, not merely those in practice, to the jurisdiction of the Discipline Tribunal. The defenders' position, however, is that disciplinary control over solicitor/reporters would be weakened if they were not treated as being in practice, because then the Code of Conduct would not apply to them. That seems to me to involve a misunderstanding of the role of the Code of Conduct. To an extent it is clear that the Code is aimed primarily at solicitors in practice as such. That is an inevitable consequence of its subject matter. But I am not convinced that the Code can never have relevance to the assessment of the conduct of a solicitor who is not in practice as such but undertaking activities analogous to those of a solicitor in practice. Section 34(1) of the 1980 Act empowers the Council to make rules for regulating the conduct of "solicitors". Given the definition in section 65(1), that is not confined to solicitors practising as such. But the Code of Conduct does not appear to have been made under section 34(1). It appears in Schedule 1 to the Code of Conduct (Scotland) Rules 1992, which Rules apply to solicitors holding a full practising certificate (regulation 2(1)), but those regulations were made under section 25A of the 1980 Act and are concerned with securing that solicitors with extended rights of audience comply with the Code set out in Schedule 1 and the Supplementary Code set out in Schedule 2. Those Regulations do not appear to be the primary source of the Code. My understanding is that it was simply adopted by the Council as a guide for solicitors to the principles underlying the more detailed provisions of the practice rules. I see no reason to regard its terms, in so far as they are capable of being applied to non-practising solicitors, as not so applying. Be all of that as it may, however, I take the view that the considerations put forward by the defenders in relation to this argument do not cast light on whether solicitor/reporters are or are not practising as solicitors. If there are rules of conduct which apply only to practising solicitors, they will apply to solicitor/reporters if they are practising as solicitors, and not if they are not. Whether they are or are not subject to such rules depends on whether or not they are practising as solicitors. Whether or not they are practising as solicitors does not, however, depend on whether it is desirable that they should be subject to rules which are applicable only to practising solicitors.

In my opinion Lord Mackay was well-founded in his submission that the defenders averments in Answer 7 are irrelevant. I do not see how the question which I have to answer as to whether solicitor/reporters in performing their functions are practising as solicitors can be answered wholly or partly by reference to the view taken of that question in the past by the pursuer, or his predecessors as reporters under the pre-1994 regime, or others. I accept the defenders' submission that it is to be inferred that the former Reporter for Strathclyde Region may be assumed to have held the view that he was in practice as a solicitor when he entered into post-diploma training contracts with trainees, and that SCRA (and possibly the pursuer) may be taken to have held a similar view when assignation of those contracts was accepted. But in the absence of any plea of personal bar (and the defenders accept that there is not and could not be such a plea), I do not consider that the view held in the past affects the merits of the issue which I have to decide. The fact that a different view from the one put forward by the pursuer in this action appears to have been held in the past may point to the need for careful consideration of the issue, but it does not seem to me to constitute material which affords support for the defenders' contention. Similar considerations apply to the fact that in the past local authorities and SCRA have paid for practising certificates for solicitor/reporters in their employment. Mr Clark was right to point out that it was to be inferred that such expenditure of public funds must have been regarded as necessary (or at least appropriate) by the authorities concerned, but that does not demonstrate that the view taken was a correct one. So far as the fact that some solicitor/reporters have chosen to meet the cost of their own practising certificates is concerned, there may be reasons for their doing so other than their view of whether they are practising as solicitors; but in any event, for the reasons already mentioned, I do not consider that any view which may have been adopted by such individuals has a material bearing on the issue before me.

Result

In the result, therefore, I am of opinion that the pursuer and other solicitor/reporters are not, in carrying out their duties as reporters, engaging in practice as solicitors. Although they no doubt rely on knowledge and skills acquired in the course of their training as solicitors, and although much of what they do is closely analogous to types of work undertaken by solicitors in practice, those considerations are in my opinion insufficient to support the proposition that what they do amounts to practice as solicitors. In relation to solicitor/reporters there is, in my view, no one who can be regarded as filling the role of client. On the contrary, they do what they do not on behalf of a client, but in performance of the statutory functions delegated to them by the Principal Reporter. The functions undertaken by solicitor/reporters are indistinguishable from those undertaken by other reporters who are not solicitors. None of the arguments advanced by the defenders justify, in my view, the conclusion that solicitor/reporters are practising as solicitors. I am able to reach that conclusion on the pleadings, taking the defenders' averments of fact pro veritate. No useful purpose would be served in these circumstances by allowing a proof. It follows, in my opinion, that neither the pursuer nor any other solicitor/reporter requires to hold a practising certificate issued under section 14 of the 1980 Act.

I shall accordingly -

1. sustain the pursuer's second plea-in-law and repel the defences, and thereafter
2. sustain the pursuer's third and fourth pleas-in-law and grant decree of declarator de plano in terms of the first and second conclusions of the summons (as amended).